the civil society; bound to this society by certain duties, and
subject to its authority; they _equally_ participate in its
advantages. The natives, or natural-born citizens, are those born in
the country, of parents who are citizens. As society cannot
perpetuate itself otherwise than by the children of the citizens,
those children naturally follow the condition of their parents, and
succeed to all their rights." Again: "I say, to be _of the country_,
it is necessary to be born of a person who is a _citizen_; for if he
be born there of a foreigner, it will be only the place of his
_birth_, and not his _country_. The inhabitants, as distinguished from
citizens, are foreigners who are permitted to settle and stay in the
country." (Vattel, Book 1, cap. 19, p. 101.)
From the views here expressed, and they seem to be unexceptionable, it
must follow, that with the _slave_, with one devoid of rights or
capacities, _civil or political_, there could be no pact; that one
thus situated could be no party to, or actor in, the association of
those possessing free will, power, discretion. He could form no part
of the design, no constituent ingredient or portion of a society based
upon _common_, that is, upon _equal_ interests and powers. He could
not at the same time be the sovereign and the slave.
But it has been insisted, in argument, that the emancipation of a
slave, effected either by the direct act and assent of the master, or
by causes operating in contravention of his will, produces a change in
the _status_ or capacities of the slave, such as will transform him
from a mere subject of property, into a being possessing a social,
civil, and political equality with a citizen. In other words, will
make him a citizen of the State within which he was, previously to his
emancipation, a slave.
It is difficult to conceive by what magic the mere _surcease_ or
renunciation of an interest in a subject of _property_, by an
individual possessing that interest, can alter the essential character
of that property with respect to persons or communities unconnected
with such renunciation. Can it be pretended that an individual in any
State, by his single act, though voluntarily or designedly performed,
yet without the co-operation or warrant of the Government, perhaps in
opposition to its policy or its guaranties, can create a citizen of
that State? Much more emphatically may it be asked, how such a result
could be accomplished by means wholly extraneous, and entirely foreign
to the Government of the State? The argument thus urged must lead to
these extraordinary conclusions. It is regarded at once as wholly
untenable, and as unsustained by the direct authority or by the
analogies of history.
The institution of slavery, as it exists and has existed from the
period of its introduction into the United States, though more humane
and mitigated in character than was the same institution, either under
the republic or the empire of Rome, bears, both in its tenure and in
the simplicity incident to the mode of its exercise, a closer
resemblance to Roman slavery than it does to the condition of
_villanage_, as it formerly existed in England. Connected with the
latter, there were peculiarities, from custom or positive regulation,
which varied it materially from the slavery of the Romans, or from
slavery at any period within the United States.
But with regard to slavery amongst the Romans, it is by no means true
that emancipation, either during the republic or the empire,
conferred, by the act itself, or implied, the _status_ or the rights
of citizenship.
The proud title of Roman citizen, with the immunities and rights
incident thereto, and as contradistinguished alike from the condition
of conquered subjects or of the lower grades of native domestic
residents, was maintained throughout the duration of the republic, and
until a late period of the eastern empire, and at last was in _effect_
destroyed less by an elevation of the inferior classes than by the
degradation of the free, and the previous possessors of rights and
immunities civil and political, to the indiscriminate abasement
incident to absolute and simple despotism.
By the learned and elegant historian of the Decline and Fall of the
Roman Empire, we are told that "In the _decline_ of the Roman empire,
the proud distinctions of the republic were gradually abolished; and
the reason or instinct of Justinian completed the simple form of an
absolute monarchy. The emperor could not eradicate the popular
reverence which always waits on the possession of hereditary wealth or
the memory of famous ancestors. He delighted to honor with titles and
emoluments his generals, magistrates, and senators, and his precarious
indulgence communicated some rays of their glory to their wives and
children. But in the eye of the law all Roman citizens were equal, and
all subjects of the empire were citizens of Rome. That inestimable
character was _degraded_ to an obsolete and empty name. The voice of a
Roman could no longer enact his laws, or create the annual ministers
of his powers; his constitutional rights might have checked the
arbitrary will of a master; and the bold adventurer from Germany or
Arabia was admitted with equal favor to the civil and military command
which the _citizen_ alone had been once entitled to assume over the
conquests of his fathers. The first Cæsars had scrupulously guarded
the distinction of _ingenuous_ and _servile_ birth, which was decided
by the condition of the mother. The slaves who were liberated by a
generous master immediately entered into the middle class of
_libertini_ or freedmen; but they could never be enfranchised from the
duties of obedience and gratitude; whatever were the fruits of their
industry, their patron and his family inherited the third part, or
even the whole of their fortune, if they died without children and
without a testament. Justinian respected the rights of patrons, but
his indulgence removed the badge of disgrace from the two inferior
orders of freedmen; whoever ceased to be a slave, obtained without
reserve or delay the station of a citizen; and at length the dignity
of an ingenuous birth _was created_ or _supposed_ by the omnipotence
of the emperor."[1]
[Footnote 1: Vide Gibbons's Decline and Fall of the Roman Empire.
London edition of 1825, vol. 3d, chap. 44, p. 183.]
The above account of slavery and its modifications will be found in
strictest conformity with the Institutes of Justinian. Thus, book 1st,
title 3d, it is said: "The first general division of persons in
respect to their rights is into freemen and slaves." The same title,
sec. 4th: "Slaves are born such, or become so. They are born such of
bondwomen; they become so either by _the law of nations_, as by
capture, or by the civil law." Section 5th: "In the condition of
slaves there is no diversity; but among free persons there are many.
Thus some are _ingenui_ or freemen, others _libertini_ or freedmen."
Tit. 4th. DE INGENUIS.--"A freeman is one who is born free by being
born in matrimony, of parents who both are free, or both freed; or of
parents one free and the other freed. But one born of a free mother,
although the father be a slave or unknown, is free."
Tit. 5th. DE LIBERTINIS.--"Freedmen are those who have been manumitted
from just servitude."
Section third of the same title states that "freedmen were formerly
distinguished by a threefold division." But the emperor proceeds to
say: "Our _piety_ leading us to reduce all things into a better state,
we have amended our laws, and re-established the ancient usage; for
anciently liberty was simple and undivided--that is, was conferred
upon the slave as his manumittor possessed it, admitting this single
difference, that the person manumitted became only a _freed man_,
although his manumittor was a _free_ man." And he further declares:
"We have made all freed men in general become citizens of Rome,
regarding neither the age of the manumitted, nor the manumittor, nor
the ancient forms of manumission. We have also introduced many new
methods by which _slaves_ may become Roman citizens."
By the references above given it is shown, from the nature and objects
of civil and political associations, and upon the direct authority of
history, that citizenship was not conferred by the simple fact of
emancipation, but that such a result was deduced therefrom in
violation of the fundamental principles of free political association;
by the exertion of despotic will to establish, under a false and
misapplied denomination, one equal and universal slavery; and to
effect this result required the exertions of absolute power--of a
power both in theory and practice, being in its most plenary
acceptation the SOVEREIGNTY, THE STATE ITSELF--it could not be
produced by a less or inferior authority, much less by the will or the
act of one who, with reference to civil and political rights, was
himself a _slave_. The master might abdicate or abandon his interest
or ownership in his property, but his act would be a mere abandonment.
It seems to involve an absurdity to impute to it the investiture of
rights which the sovereignty alone had power to impart. There is not
perhaps a community in which slavery is recognised, in which the power
of emancipation and the modes of its exercise are not regulated by
law--that is, by the sovereign authority; and none can fail to
comprehend the necessity for such regulation, for the preservation of
order, and even of political and social existence.
By the argument for the plaintiff in error, a power equally despotic
is vested in every member of the association, and the most obscure or
unworthy individual it comprises may arbitrarily invade and derange
its most deliberate and solemn ordinances. At assumptions anomalous as
these, so fraught with mischief and ruin, the mind at once is
revolted, and goes directly to the conclusions, that to change or to
abolish a fundamental principle of the society, must be the act of the
society itself--of the _sovereignty_; and that none other can admit to
a participation of that high attribute. It may further expose the
character of the argument urged for the plaintiff, to point out some
of the revolting consequences which it would authorize. If that
argument possesses any integrity, it asserts the power in any citizen,
or _quasi_ citizen, or a resident foreigner of any one of the States,
from a motive either of corruption or caprice, not only to infract the
inherent and necessary authority of such State, but also materially to
interfere with the organization of the Federal Government, and with
the authority of the separate and independent States. He may
emancipate his negro slave, by which process he first transforms that
slave into a citizen of his own State; he may next, under color of
article fourth, section second, of the Constitution of the United
States, obtrude him, and on terms of civil and political equality,
upon any and every State in this Union, in defiance of all regulations
of necessity or policy, ordained by those States for their internal
happiness or safety. Nay, more: this manumitted slave may, by a
proceeding springing from the will or act of his master alone, be
mixed up with the institutions of the Federal Government, to which he
is not a party, and in opposition to the laws of that Government
which, in authorizing the extension by naturalization of the rights
and immunities of citizens of the United States to those not
originally parties to the Federal compact, have restricted that boon
to _free white aliens alone_. If the rights and immunities connected
with or practiced under the institutions of the United States can by
any indirection be claimed or deduced from sources or modes other than
the Constitution and laws of the United States, it follows that the
power of naturalization vested in Congress is not exclusive--that it
has _in effect_ no existence, but is repealed or abrogated.
But it has been strangely contended that the jurisdiction of the
Circuit Court might be maintained upon the ground that the plaintiff
was a _resident_ of Missouri, and that, for the purpose of vesting the
court with jurisdiction over the parties, _residence_ within the State
was sufficient.
The first, and to my mind a conclusive reply to this singular argument
is presented in the fact, that the language of the Constitution
restricts the jurisdiction of the courts to cases in which the parties
shall be _citizens_, and is entirely silent with respect to residence.
A second answer to this strange and latitudinous notion is, that it so
far stultifies the sages by whom the Constitution was framed, as to
impute to them ignorance of the material distinction existing between
_citizenship_ and mere _residence_ or _domicil_, and of the well-known
facts, that a person confessedly an _alien_ may be permitted to reside
in a country in which he can possess no civil or political rights, or
of which he is neither a citizen nor subject; and that for certain
purposes a man may have a _domicil_ in different countries, in no one
of which he is an actual personal resident.
The correct conclusions upon the question here considered would seem
to be these:
That in the establishment of the several communities now the States of
this Union, and in the formation of the Federal Government, the
African was not deemed politically a person. He was regarded and owned
in every State in the Union as _property_ merely, and as such was not
and could not be a party or an actor, much less a _peer_ in any
compact or form of government established by the States or the United
States. That if, since the adoption of the State Governments, he has
been or could have been elevated to the possession of political rights
or powers, this result could have been effected by no authority less
potent than that of the sovereignty--the State--exerted to that end,
either in the form of legislation, or in some other mode of operation.
It could certainly never have been accomplished by the will of an
individual operating independently of the sovereign power, and even
contravening and controlling that power. That so far as rights and
immunities appertaining to citizens have been defined and secured by
the Constitution and laws of the United States, the African race is
not and never was recognised either by the language or purposes of the
former; and it has been expressly excluded by every act of Congress
providing for the creation of citizens by _naturalization_, these
laws, as has already been remarked, being restricted to _free white
aliens_ exclusively.
But it is evident that, after the formation of the Federal Government
by the adoption of the Constitution, the highest exertion of State
power would be incompetent to bestow a character or status created by
the Constitution, or conferred in virtue of its authority only. Upon
those, therefore, who were not originally parties to the Federal
compact, or who are not admitted and adopted as parties thereto, in
the mode prescribed by its paramount authority, no State could have
power to bestow the character or the rights and privileges exclusively
reserved by the States for the action of the Federal Government by
that compact.
The States, in the exercise of their political power, might, with
reference to their peculiar Government and jurisdiction, guaranty the
rights of person and property, and the enjoyment of civil and
political privileges, to those whom they should be disposed to make
the objects of their bounty; but they could not reclaim or exert the
powers which they had vested exclusively in the Government of the
United States. They could not add to or change in any respect the
class of persons to whom alone the character of citizen of the United
States appertained at the time of the adoption of the Federal
Constitution. They could not create citizens of the United States by
any direct or indirect proceeding.
According to the view taken of the law, as applicable to the demurrer
to the plea in abatement in this cause, the questions subsequently
raised upon the several pleas in bar might be passed by, as requiring
neither a particular examination, nor an adjudication directly upon
them. But as these questions are intrinsically of primary interest and
magnitude, and have been elaborately discussed in argument, and as
with respect to them the opinions of a majority of the court,
including my own, are perfectly coincident, to me it seems proper that
they should here be fully considered, and, so far as it is practicable
for this court to accomplish such an end, finally put to rest.
The questions then to be considered upon the several pleas in bar, and
upon the agreed statement of facts between the counsel, are: 1st.
Whether the admitted master and owner of the plaintiff, holding him as
his slave in the State of Missouri, and in conformity with his rights
guarantied to him by the laws of Missouri then and still in force, by
carrying with him for his own benefit and accommodation, and as his
own slave, the person of the plaintiff into the State of Illinois,
within which State slavery had been prohibited by the Constitution
thereof, and by retaining the plaintiff during the commorancy of the
master within the State of Illinois, had, upon his return with his
slave into the State of Missouri, forfeited his rights as master, by
reason of any supposed operation of the prohibitory provision in the
Constitution of Illinois, beyond the proper territorial jurisdiction
of the latter State? 2d. Whether a similar removal of the plaintiff by
his master from the State of Missouri, and his retention in service at
a point included within no State, but situated north of thirty-six
degrees thirty minutes of north latitude, worked a forfeiture of the
right of property of the master, and the manumission of the plaintiff?
In considering the first of these questions, the acts or declarations
of the master, as expressive of his purpose to emancipate, may be
thrown out of view, since none will deny the right of the owner to
relinquish his interest in any subject of property, at any time or in
any place. The inquiry here bears no relation to acts or declarations
of the owner as expressive of his intent or purpose to make such a
relinquishment; it is simply a question whether, irrespective of such
purpose, and in opposition thereto, that relinquishment can be
enforced against the owner of property within his own country, in
defiance of every guaranty promised by its laws; and this through the
instrumentality of a claim to power entirely foreign and extraneous
with reference to himself, to the origin and foundation of his title,
and to the independent authority of his country. A conclusive negative
answer to such an inquiry is at once supplied, by announcing a few
familiar and settled principles and doctrines of public law.
Vattel, in his chapter on the general principles of the laws of
nations, section 15th, tells us, that "nations being free and
independent of each other in the same manner that men are naturally
free and independent, the second general law of their society is, that
each nation should be left in the peaceable enjoyment of that liberty
which she inherits from nature."
"The natural society of nations," says this writer, "cannot subsist
unless the natural rights of each be respected." In section 16th he
says, "as a consequence of that liberty and independence, it
exclusively belongs to each nation to form her own judgment of what
her conscience prescribes for her--of what it is proper or improper
for her to do; and of course it rests solely with her to examine and
determine whether she can perform any office for another nation
without neglecting the duty she owes to herself. In all cases,
therefore, in which a nation has the right of judging what her duty
requires, no other nation can compel her to act in such or such a
particular manner, for any attempt at such compulsion would be an
infringement on the liberty of nations." Again, in section 18th, of
the same chapter, "nations composed of men, and considered as so many
free persons living together in a state of nature, are naturally
equal, and inherit from nature the same obligations and rights. Power
or weakness does not produce any difference. A small republic is no
less a sovereign state than the most powerful kingdom."
So, in section 20: "A nation, then, is mistress of her own actions, so
long as they do not affect the proper and _perfect rights_ of any
other nation--so long as she is only _internally_ bound, and does not
lie under any _external_ and _perfect_ obligation. If she makes an ill
use of her liberty, she is guilty of a breach of duty; but other
nations are bound to acquiesce in her conduct, since they have no
right to dictate to her. Since nations are _free_, _independent_, and
_equal_, and since each possesses the right of judging, according to
the dictates of her conscience, what conduct she is to pursue, in
order to fulfil her duties, the effect of the whole is to produce, at
least externally, in the eyes of mankind, a perfect equality of rights
between nations, in the administration of their affairs, and in the
pursuit of their pretensions, without regard to the intrinsic justice
of their conduct, of which others have no right to form a definitive
judgment."
Chancellor Kent, in the 1st volume of his Commentaries, lecture 2d,
after collating the opinions of Grotius, Heineccius, Vattel, and
Rutherford, enunciates the following positions as sanctioned by these
and other learned publicists, viz: that "nations are equal in respect
to each other, and entitled to claim equal consideration for their
rights, whatever may be their relative dimensions or strength, or
however greatly they may differ in government, religion, or manners.
This perfect equality and entire independence of all distinct States
is a fundamental principle of public law. It is a necessary
consequence of this equality, that each nation has a right to govern
itself as it may think proper, and no one nation is entitled to
dictate a form of government or religion, or a course of internal
policy, to another." This writer gives some instances of the violation
of this great national immunity, and amongst them the constant
interference by the ancient Romans, under the pretext of settling
disputes between their neighbors, but with the real purpose of
reducing those neighbors to bondage; the interference of Russia,
Prussia, and Austria, for the dismemberment of Poland; the more recent
invasion of Naples by Austria in 1821, and of Spain by the French
Government in 1823, under the excuse of suppressing a dangerous spirit
of internal revolution and reform.
With reference to this right of self-government in independent
sovereign States, an opinion has been expressed, which, whilst it
concedes this right as inseparable from and as a necessary attribute
of sovereignty and independence, asserts nevertheless some implied and
paramount authority of a supposed international law, to which this
right of self-government must be regarded and exerted as subordinate;
and from which independent and sovereign States can be exempted only
by a protest, or by some public and formal rejection of that
authority. With all respect for those by whom this opinion has been
professed, I am constrained to regard it as utterly untenable, as
palpably inconsistent, and as presenting in argument a complete _felo
de se_.
Sovereignty, independence, and a perfect right of self-government, can
signify nothing less than a superiority to and an exemption from all
claims by any extraneous power, however expressly they may be
asserted, and render all attempts to enforce such claims merely
attempts at usurpation. Again, could such claims from extraneous
sources be regarded as legitimate, the effort to resist or evade them,
by protest or denial, would be as irregular and unmeaning as it would
be futile. It could in no wise affect the question of superior right.
For the position here combatted, no respectable authority has been,
and none it is thought can be adduced. It is certainly irreconcilable
with the doctrines already cited from the writers upon public law.